The Philippine Department of Foreign Affairs recently issued a statement once again hyping the so-called "award" of the 2016 South China Sea arbitration, falsely claiming that it is legally binding and demanding that China accept and comply with it. Wrong does not become right through repetition, nor does illegality become legality with the passage of time. Over the past decade, the Philippines has repeatedly revived this illegal "award", but doing so cannot conceal the fact that it infringes upon China's legitimate rights and interests, change the reality that the Philippines has repeatedly provoked tensions and undermined peace and stability in the South China Sea with the backing of external forces, or negate the serious damage the "award" has caused to the international rule of law and the maritime order.
Whether an arbitral award has legal validity under international law depends on whether it conforms to the fundamental principles of international law, falls within the tribunal's lawful jurisdiction, and withstands scrutiny of facts and laws. From the initiation of the proceedings and the tribunal's jurisdiction to its substantive findings, the so-called "award" of the South China Sea arbitration is untenable from beginning to end. It is nothing more than a null and void piece of paper.
Grossly illegal proceedings is devoid of legitimacy from the outset—
State consent is the cornerstone of international dispute settlement mechanisms. The initiation of any arbitral proceedings must be based on the consent of the parties concerned, a universally recognized principle of international law. By unilaterally initiating the so-called "arbitration", the Philippines neither fulfilled its obligation to engage in adequate consultations with China on dispute settlement nor honored its commitment under bilateral agreements to resolve disputes through direct negotiations. It also violated the provision of the Declaration on the Conduct of Parties in the South China Sea requiring disputes to be peacefully resolved through friendly consultations between the states directly concerned, thereby running counter to the international law principle of estoppel. An "award" that disregards the will of a sovereign state and breaches the initiating party's own commitments from the very outset is devoid of any legal foundation.
The "arbitral tribunal" clearly exceeded its authority and lacked jurisdiction —
Despite all the layers of packaging, the Philippines' claims essentially centered on two issues: China's territorial sovereignty over the Nansha Qundao and maritime delimitation in the relevant waters. Territorial sovereignty falls outside of the scope of the United Nations Convention on the Law of the Sea (UNCLOS)(hereinafter referred to as "the Convention"), while maritime delimitation disputes were expressly excluded by the Chinese government from compulsory dispute settlement procedures through a declaration made under Article 298 of the Convention in 2006. Among the five permanent members of the United Nations Security Council, all except the United States—which is not a party to the Convention—have made similar declarations. This is a legal right expressly granted to States Parties under the Convention. Disregarding these fundamental facts, the "arbitral tribunal" unlawfully expanded its jurisdiction and rendered rulings beyond its authority. In essence, it abused the Convention's dispute settlement mechanism, and its conclusions therefore carry no legal binding force.
The "award" is riddled with serious legal flaws and has drawn widespread criticism—
The "arbitral tribunal" committed systematic errors in both its findings of fact and its application of the law. For example, the "award" wrongly classified Taiping Island—the largest island in the Nansha Qundao, with a complete natural ecosystem and conditions suitable for human habitation—as a "rock", and on that basis reached the absurd conclusion that no island or reef in the Nansha Qundao is entitled to claim an exclusive economic zone or continental shelf. This directly contradicts the Convention's clear definition of the legal status of islands. Moreover, the "award" wrongly denied China's historic rights in the South China Sea and deliberately disregarded the geographical and legal integrity of the Nansha Qundao. These and many other fundamental errors have prompted widespread criticism within the international legal community.
Ten years on, this illegal "award" has not resolved the disputes. Instead, it has become a negative example of disrupting order in the South China Sea and undermining the international rule of law. In recent years in particular, the Philippines has repeatedly used the "award" as a pretext to attack the China Coast Guard's legitimate rights protection and law enforcement activities at Ren'ai Jiao and Huangyan Dao. It has also attempted to legitimize the erroneous conclusions of the illegal "award" through domestic legislation, further heightening regional tensions. The flawed conclusions of the "award" have been improperly cited by some international judicial and arbitral bodies, allowing legal errors to spread. Meanwhile, certain forces have turned it into a tool for information and public opinion campaigns, disseminating false narratives, misleading public opinion, and undermining the foundation of mutual trust in global ocean governance. Facts have repeatedly shown that so long as the toxic legacy of this political farce persists, peace and stability in the South China Sea, as well as the fairness of the international maritime order, cannot be fully safeguarded.
Editor's note: Originally published on people.com.cn, this article is translated from Chinese into English and edited by the China Military Online. The information and opinions in this article do not necessarily reflect the views of eng.chinamil.com.cn.